Historical Newspapers of South Carolina

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SUPPLEMENT TO CHAE1ESTON 1?? M To the Stockholders of the S. C. R. R. Company. At the meeting of thc Stockholders of the South Carolina Railroad Company, on the 9th instant, the President stated that he had " requested Mr. Conner, the Solioitor of tho Company, to state, for the information of tho meeting, the history and condi? tion of the utigatioa pending between tho South Carolina Railroad Company and the Columbia and Augusta Railroad Company." Professional engagements as counsel in a capital case, then on trial, prevented me Crom attending the meeting and furnishing the information required. It is still dosired that the information should be i arnished ; and as the decision of th? cass ance ti very materially the interests of the corporation, and is of much im? portance to the stockholders, 1 hare regarded tho publication of tho argument, which was had before tho Supreme Court of the State, as best caloulated to oonvey a olear and distinct idea of the issues between the companies. In order to understand the discussion it is necessary, however, to narrate the his? tory of the oase, and state the oiromnstaneea whieh occasioned the appeal to the Su .nreme Court. Thia I shall endeavor to do as briefly as is consistent with accuracy. Th? Columbia and Augusta Railroad Company was first chartered in 1868. Nothing was done under this oharter. In lo?S, under the pressure of military ne? cessity, which demanded a railroad communication between Columbia and the West, shorter and less liable to hostile interruption than that existing, tho charter of the Columbia and Augtuta Railroad Company was amended, subscriptions made, and the work commenced. Every one familiar with tho history of the time, knows bow futile it would have been to oppose to tho great want of the oountry the privileges of a corporation. The safety of tho Sute was the supreme law, and private interests yielded to public necessity. But when the war ended, and the road was not completed, the reasons for with? holding opposition ceased, and in April, 1867, tho South Carolina Railroad Com? pany filed its bill, to enjoin the Columbia and Augusta Railroad Company from completing the road, so as to connect Augusta und Columbia, on the ground that tba oharter of the latter was in derogation of the rights previously conferred upon th? South Carolina Railroad Company, and to enjoir. thom from oonneoting Granite? vilie and Augusta, on the ground that the power to do so was not given in their charter, and that the right to build and keep up a railway communication between those towns was expressly and exclusively vested in the South Carolina Railroad Company. Wnen the bili waa filed the road of the Columbia and Augusta Company was graded to within a few miles of G rani te viii o village-distant about a mile from Granitevillo station, on e South Carolina Railroad Company-and the line of the road from Granitevilie . Jambare was not definitely locatod. Th? case was argued before Chancellor Carroll, who refused the injunction. Pending the decision by Ibo Chancellor, the Columbia and Augusta Railroad Com? pany, without notice to the South Carolina Railroad Company, and without con? sultation between the companies or their engineers, as to the best location, and the best mode of oroesing with due regard to ?he convenience of both companies and the safety of the public, out the rails of tho South Carolina Railroad about a mile below the depot in Columbia and orossed the track on thc same lovel. .Their right to do so was resisted, and was one of the questions submitted on appeal. The case was heard by the Court of Errors in December, 1367, and it was adjudged that the Columbia and Augusta Railroad Company had the right to connect Columbia and Augusta, and the right to build their road via Granitcville, and thereby to connect Granite v iile and Hamburg ; that the company had the right to croes the track of the South Carolina Railroad Company near Columbia, but should "use it with extraordinary care in subordination to the rights of the plaintiff," and "with responsibility for all damages that may oomo directly or indirectly" from negligence of defendants. The questions at issue between the two companies had been heard and decided by tbs appropriate legal tribunal, and in that decision the South Carolina Railroad Company acquiesced without further appeal. The Directors had discharged their trust in submitting the rights which they represented to legal adjudication, and the responsibility was not with them but with the Courte. Th? rights given to the Columbia and Augusta Railroad Company by the judg? ment of the Court, were the right to coanoee Columbia and Augusta, and Granite? vilie and Augusta. Thus much and no more. In October, 1867, the Columbia and Augusta Railroad Company applied to Judge Aldrich to eondeinn the depot lot of ti:a South Carolina Railroad Company at O rani te ville for the purpose of building ??ir track through it. This application was resisted, and Judge Aldrich decided that under their oharter tho Columbia and Augusta Railroad Company had no right to oondemn to its use the hinds or rights of way of the Scuth Carolina Railroad Company. From this decision no appeal was taken, and the question was regarded as settled. In September, lSoS, an Aot was passed by the Legislature to declare the manner by which lands and the right of way over lands might be condemned. Shortly Baiter its passage, and without legal proceedings of any kind, the Columbia ?md Augusta Railroad Company entered upon tho lands of the South Carolina Rail? road Company and oommenced constructing their rood. A bill in equity was filed, not te enjoin them from constructing their road, but simply to enjoin them from constructing it on the land? and right* of way of tit? South Carolina Railroad Company. The Columoia and Augusta Railroad Company pleaded that the question was rt? udjudicata. Mr. Justice Willard, in delivering his opinion, held that the question submitted was not res adjudioata, that the location of the Columbia and Augusta Railroad Company, "as interfering with their {Hat South Carolina Railroad Com? pany's) proprietary rights, does not appoar to have been before the Court, except in relation to the crossing at Columbia." He further held that the Columbia and Augusta Railroad Company were trespassers, and granted an order enjoining them from entering upon tho lands, rights of way or franchises of tho South Carolina Rail? road Company, with leave to tho Columbia a id Augusta Railroad Company to move to dissolve tho injunction before the bearing, upon proof that they hod " duly acquired tho right." This order was dated November 20,1968, and on 1st of December, in pursuance of nolie? dated November 24, lo63, application was made to Judge Platt, at Aiken, for eondemnatior of a part of the dopot lot at Granitevilie, and of large portions of the land and right of way of the South Carolina Railroad Company, including ground purchased bef ore, the war by the South Carolina Railroad Company for the-porpeee of ebustructing a new track in order to avoid dangerous curves, and upon which they had graded a portion of the new track. The construction of the Columbia and Augusta Road as projeoted would occupy the very ground purchased by th? South Carolina Railroad Company for th? purpose of straightening their track, would render that improvement impossible, and would interpose th? track of the Columbia and Augusta Road betwoen the South Carolina Railroad and the hills, whioh they had purchased for the purpose of procuring th? supplies of earth necessary in the repairing of the road. The application was resisted, and the legal right o? the Columbia and Augusta Company to appropriate to its use lands purohased and rights of way granted to tho South Carolina Railroad Company was denied. A formal return setting forth the legal grounds upon which the application waa resisted was filed before Judge Platt. The Court of Appeals bad decided in 18?6, (Blake's oase, 9 Rich., 228,) that when? ever the right to condemn was resisted, there must be a Mpreliminary trial and decision" of the right, and tho counsel for the South Carolina Railroad Company endeavored to arguo the question of right, and obtain from Judge Platt a decision upon it- The Judge dociined to hear argument upon that question, and in his opinion, made December 4,1368, said: "I do not con s ?dor myself at liberty to enter? tain and decide upon any asserted rights or objections, except the simple one of hindranee." The cause was continued by his Honor until the 10th December, for the purpose of taking testimony upon the foot of whether the Columbia and Augusta Railroad would ba a hindrance, and on the 17th December, Judge Platt delivered his opinion and order. In the original opinion, copy of which was furnished to the counsel for the South Carolina Railroad Company, the ol ai m of tho Columbia and Augusta Rail? road was regarded as reduced from litty feet to ten feet, the opinion was made part of th? order, and the order issued to impanel the jury to assess compensation. Sub? sequently, and without notice to tho South Carolina Railroad Compony or its counsel, tho opinion was altered, th? words " ten feet" were strioken out, and in lieu thereof was substituted " sufficient width of ground for the construction of their roadbed.** ' Th? jury were drawn at midday of December 31, at Edgefield C. H., and sum? moned to attend at Granitevilie on January 2. No notice was given to the offioers of th? South Carolina Railroad Company or to the counsel specially charged with the .ause- no time was allowed for the summoning of witnesses-no testimony was taken-no estimate made of the special damage. The jury simply looked at the land and assessed compensation at $110. His Honor had said in his opinion that to take fifty feet " must work suoh hin? drance as the btw had forbidden." " The Legislature never intended to justify so extensive an onoroachment." Th? jury condemned sixty feet for a space of three and three-quarter miles 1 Th? compensation assessed was paid, and the Columbia and Augusta Company moved, bet?re Judge Boozer, to dissolve the injunction. The counsel for the South Carolina Railroad Company resisted the motion on the ground that so far from " the right" having been " duly acquired," tho right had not even been discussed; that Judgo Platt had refused to hear and decide it ; that only the value of what was taken had bean adjudged, not tho right to take; that the right was distinctly put in issue, and that the South Carolina Railroad Company could not be divested of its property and franchises, until the right of the Columbia and Augusta Company to take them had been adjudged. It was replied that Judge Platt, in granting the order to impanel the jury, had determined the question ; that his action was decisivo and could not be overruled by another Circuit Judge sitting in judgment on a separate branch of the oase. . These views apparently oommended thom iel vea to Judge Boozer, for in a formal order of a few lines he dissolved the injunction. The anomaly was thus presented of a corporation being deprived of its property without the right to take having ever been adjudged by any legal tribunal. Before every tribunal in whioh the caso had been heard, in every form in whioh the issue could be raised, the legal right had boen presented and a decision of it earnestly asked, but in vain. Balor* Judge Platt it was said, Judge Boozer will decide it, and Judge Platt passed the que ?rion by undecided. When the cause oame before Judge Boozer, it Wai said Judgt- flatt has decided it, and Judge Boozer simply dissolved the injunc? tion without a word adjudicating the right, Behoving that the South Carolina Railroad Company could be deprived of its Sroperty only by the judgment of a Court determining the question of legal right, ie whole case was carrieu by motion for prohibition to the Supreme Court, in order that that tribunal, speoiaily empowered by the constitution to exercise " a general supervisory control over all the Courts in the State," and whose decisions would be binding upon all subordinate Courts, might decide all the questions at issue between the two companies, and determine by legal judgment the rights of each. Tb? views urged on behalf of the South Carolina Railroad Company will appear from the folio, ag arguments. Pending thi, egal proceedings an effort was made to terminate the litigation by referring all the questions at taine to th? arbitration of a oommittee oomposed of three directors of each company. The correspondence upon the subject is appended to the arguments. JAMB'S CONNER, Solicitor South Carol?ta Haili oad Company. IN THE SUPREME COURT. THE STATE EX RELATIONS THE SOUTH CAROLINA RAILROAD COMPANY, vs. THE COLUMBIA AND AUGUSTA R R. COMPANY. SUGGESTION IN PEOHIBITION. JAMES CONNER and A. G. MAGRATH, for delators. MELTON, MEMMIXGER and CARROLL, for Bespondents. ARGUMENT OF JAMES CONNER, or COUNSEL Ftfct RELATORS. May it please the Court: Before entering upon the argument of this case, let us first endeavor to ascertain clearly what are the issues involved. It ia somewhat singular that in a litigation so protracted, and which, in eo many forms, has been belora so many tribu? nal^ there should be any doubt or misapprehension as to the question to be docided by the Court? Yet. there is probably no cause in which tho, rea] question at issue has been so general.' misunderstood. It has been the misfortune* of our clients, pe haps, that they have not sought bj popular arts to educa and influence public opinion, but have trusted too implicitly 1 the corrective powers of tho law, and rested too securely in ti conviction that their rights were to be determined by judioi tribunals, and not by that public opinion, before the bar of whic tboy have been upon so many charges arraigned. However willing on all proper occasions to defor to pubi opinion, we cannot consent that it should settle questions i legal right; these belong to the Courts, and we are here now 1 stand or fall by the law of the land. It is alleged that we are attempting to prevent the constru tion of the Columbia and Augusta Railroad, and that our opp sition springs entirely from this cause. We have no such o4)jec We seek neither to destroy the road, provent its complatio nor take from the company one single right of way br otb.' privilege that belongs to them. We do not propose to ???e ?ere with any legitimate.action of theil' charter, but to siia^l say to them you must not and cannot act in excoss of the pd**' you have derived from the State Our effort is to rostral and keep the Columbia and Augusta Railroad within the x cognized limits of its chartered authority; this and nothiic more. In the discussion upon which we are about to enter, I sha avoid, as much as possible^ all debateable points, auf endeavor 1 rest our case upon plain principles of law and upon facts thi cannot be called in question. To narrow the subject dow: therefore, I propose in the outset to declare wha? we concede. We concede the right of the Columbia and Aurusta Railron to build a line from Columbia to Augusta, to build it via Grai iteville, and to connect Graniteville and Hamburg ; and thei we take our stand. We say that is tho utmost eafcent of tl right whioh by any declaration of a Court, or by any possih inference of law, has been or can be granted, and beyond thi you cannot go. You may build your road from Qraniteville 1 Hamburg, but you cannot build it on our land. Ayoid oui* or hundred feet right of way-that little strip of land gu?rante* to us under our charter, and vested in us by tho Legislatur and you may build when, where and how you please. Bi they refuse to do eyen that. Here, may it please your Honors, I have conceded everythin which is decided by the case in 13th Richardson's Equity. I) deed, I have gone even beyond what can hie legitimately referre to as the decision in that case ; because it is there left open t doubt whether the company had a right to construct th? roa from Graniteville to Hamburg. This disposes entirely of the nie of res adjudicata. It is utterly impossible that the question w?c I now make could have been decided in the case before w Court of Errors in 1867, or before tho Chancellor in May 0 June of the same year. The definite location of the route fror Graniteville to Hamburg, as the Engineer states, was not mad until June or July, 1868, while the decision of the Chancellor oi the cirouit was made in Juno, 1867, and the decision of th Court of Errors in December following. It was, therefor* physically impossible for the Court to decide upon the right t build on our land, because no human tribunal knew where th road was to be definitely located, and because it was not locaie< until fuDy one year alter the decision of the Court had bee] announced. Is there, then, anything unreasonable in the application w make, or in the opposition we set up ? Is it not, on the coe trary, fair and proper fer the South Carolina Railroad Company to concede to the Columbia and Augusta Railroad the full lim i of its chartered rights ; but, at the same time, declara they saal not trespass upon us or exceed that which has been fegajlr. given; and when they attempt to do so interpose for our pic tection the law of the State, and submit the whola question t< the judgment of the legal tribunaIs.of tho oouu<*y V Yet, fe? doing this, we have been in every form arraigned und denounot* ?as setting up factious opposition to a public enterprise. Now, we contend that it was our right-more than that, i was our duty to bring these quostioos before tb? Courts, am ?obtain their judgment upon thain. The Directors are trustee: of large and valuable publio interests, and they would h?*/< been recreant to their duty had they permitted the company u be deprived of its rights by anything le?s than the judgment o the Supreme Court of the State. Let us ascertain what are the rights of the parties in this case The South Carolina Railroad Company ia in possession of cor tain lands, and a right of way granted by the State, witjb oertair powers and privileges which, together, constitute the property of the corporation. This is secured to then in the mott expresi and exclusive terms. The first section of the charter of 182? gives them the " exclusive right to make, keep up, and uso these railroads." The ninth section gives thom the power? "to pur chase and have and hold any lands along which ta run anc locate the aforesaid road." These were the privileges of the Canal and Railroad Company incorporated in 1827. Similar powers were subsequently be stowed on the Cincinnati, Louisville, and Charleston Railroad Company, by the Act of 1836. (See Sortions 2, 37 and 38.^ And these two roads were made ono by the Act of 1843, undoi the title of the South Carolina Railroad Company, in which were merged all the rights, privileges and property belonging to either. ' That is not only tho import ot' tho Aol of 1843^ but in Blake's case, 9th Richardson L. R., 232, the Court expressly decided such to be the construction of the statute. Judge Willard-But subject to the" qualification, that thc combined powers of the two roads are not extended over thc whole line. Between Columbia and Charleston they have ai] the powers of one, and between Augusto and Charleston all UK powers cf tue other road. That is alL Mr. Conner-I submit, with great doferenoe, that your Honoi is mistaken in the Oppenheim case, to which you allude. Thc original line of the Canal and Railroad Cfompany was from Charleston to Augusta ; tho original line of tho Louisville, Cin? cinnati, and Charleston Railroad was from Branchville to Colum? bia^-consequently, if your Honor is correct, the oharter of thc Louisville and Cincinnati Company would not apply to anv land in the City of Charleston. Tho Court in that case, how? ever, deemed it immaterial under which charter tho Soutl Carolina.Railroad Company procooded. Had the point been determined, as jour Honor supposes, il would have relieved our friends, on tho, other side, of mach cn> barrassment, because a large portion of their argument, in thc Court of Errors, turned-upon the questian, whether the united charter covered the whole road, or whether the first charter applied only to the Hamburg lino, and the charter of ?835 tc the Columbia line. Such a decision was sought, but I am not aware that it has been rendered in any case. For my own part, I entertain a strong conviction that the united chairter ap? plies to every foot of toe track. This, however, is a question aside from the present issue. We are now discussing tao ex? clusive privileges attached to that portion of the road betxween Graniteville and Aiken, and to which aertainly applies the' Act of 1828. Now, as to the land and right of way which is sought to be taken from us by the Columbia and Augusta Railroad Company, we show a statutory title. The A*ct ol' 1833, in the absence ol specific contract, vests in the company a title to one hundred feet on each side of tho track. I have already called your Honors' attention to that clause which gives the South Carolina Railroad Company the right to purchase land necessary for repairing, sustaining and keeping up their road ; so that we have reacted this po?nt, that for everything whioh the Columbia and Augusta Railroad Com? pany seek to take from us, we have an absolute statutory title or a conveyance in fee, obtained under tho aathority of the charter. I desired to show in the clearest manner how, from whom, and by what tenor the rights we okiim were held ; to exemplify the exclusive nature of tho grant, and thus lay the foundation of the argument I shall hereafter intrpduce. It is unnecessary, however, for your Honors to entertain any ques? tion of title, because tho proceedings frear beginning to end admit the title to be in us. Whon tue opposite paity claim to condemn the land, under the very terms of the A-pt they file their proceedings aguinst the owner. So that, not only by act of law, but by the admission of the parties thamseives, our title is indisputable. In iact their own title-would be valaeless, unless the precedent title was in UB. NOW, we can only ba divested ol that title by a paramount title, and wo ask by wlwit right ara j we to be deprived ol'that whioh they concedo to bo legitimately lour own? r It is soarcely ne-^ssary to cite authority, but Sor a moment I 'oall your attention to the language of his Honor* Judge Ward v law, in delivering tho opinion of the Court in the caso of Bli He says: "If the mere assertion is to be conclusive, then u " such assertion the company might enter upon any lands 1 " a hope of profitable speculation would induce it to take." If the company's assertion of right should not be oonolui there must be some trial. This whole case, may it please the Court, rests entirely u that proposition, namely, that a party cannot, by the mere sertion, or the manifestation of the disposition to take, dive vested right. Now . a corporation has no powers save those, given to it the original oharter, or by subsequent legislation. Whale t?e Columbia and Augusta Railroad Company claim from therefore, it must be presumed, in a courthouse, they claim carding to law. We oall upon them to show their author If the right exists in fact, they must have the title. Let ii then produce the Act of Legislature which empowers that < po ration to condemn and take our land. Clearly, the grant authority is not in the oharter ; nor is the proceeding here ba on their charter, but brought undera diff?re-DI Act al toge tl There is not only a concession in this fact, but we have lurt ?eonelusive proof that when they made application to Ju Aldrich, at Edgefieid, and asked for a condemn uti on of 1 property under their charter, and he refused on tho ground t they had not the rights they claimed,' no appeal was takei the Supreme Court Judge Willard-If Judge Aldiioh had the right to dec they were not authorized to take this land, why had not Ju< Platt a right to decide to the contrary? The question in mind is, where isjurisdiction lodged ? Mr. Conner-Your Honor not onlv anticipates my argum but applies it to a state of facts which I am not now disoussi My present objeot is to show that these parties have no-1 under theil- charter. Judge Aldrich so ruled. The applicat to Judge Aldrich was under the charter. The application Judgo Platt was under the Act of 1868. Now, as 1 said bofe no appeal was taken from Judge Aldrich's opinion. What lowed ? Aot No. 42 was passed, and under this they institu now proceedings, abandoning all attempts to oondemn t property, under their oharter. On this basis the pending ist rests. Let us examine their present claim. It is alleged that un< the statute of 1868, No. 42, they can condemn the rights, pri leges and franchises, exclusively vested in us by Acts of 1 Legislature, and appropriate them to their own use. It is i merely the question of condemning and dedicating to a pul use that which is private property, but it is a condemnation a appropriation to their own use ofthat which is already dedicat to public use. In other words, the Legislature has taken pn erty dedicated to public use, in the hands of A, and dedicated to tho same public use in the hands of B. It is an exercise o: , much higher power than when under the law of eminent t main private property is oondemned to public use. This poi fr elaborated with great care and pressed with great earne n*$3 in a oase which settled the right of a State, by virtue emiixent domain, to oondemn the franchise of a corporation a: vest it-r-not in another corporation, but in the public. I rei to 6 Howard, p. 538, West River Bridge vs. Dix. Judge Willard-My mind is, perhaps, slow in grasping yo proposition. Do I understand your argument lo be tiiat whe a oorp?ratiou seeks to condemn property under the emine domain, ana endeavors to acquire that which is not vested I the charter, the proper remedy is by prohibition ? Mr. Colmer-Not altogether. Your Honor's suggestion a plies to the appropriateness of the remedy. What! desire establish first, is the rights of tho party j and secondly, if tho rights have been violated, to discover t?e proper remedy. The proposition I am now urging is that there is a gre difference between condemning private property to public us or authorizing a corporation to condemn private property to public use, and appropriating to B that which is already dei oated to public use iu the hauds of A; or, in other words, trat .erring the rights of one to the" hands of another. " This question received careful attention in the case of ti West River Bridge vs. Dix j 6 Howard, 538. " It is argued, says J ustioo McLean, " that if tho State m. "take this bridge, it may transfer it to other individuals und ?.tho same or a different charter. This the Stato cannot do. . M would bo in effeot taking the property from A to convey it to B And to the same effect is the decision of Chief Justice Shaw i Boston Water Powor Company PS. Boston and Worcester Rai road Company, 1 Amerioan Railway Cases, p. 325. The authorities, therefore, are to the point that it is an extr ordinary exercise of tho power of eminent domain to take thi whioh is already appropriated to a public use. It is unnecessary, however, in tho Une of argument I am pu suing, to make any question as to the right of a State, by virtc ?of the power of eminent domain, to appropriate the property < ono corporation for the benefit of anothor. We take our stan an lower ground. Conoeding, for the sake of the argumoD even the right on the part of the State to take that wmch, b speoial grant, is tho property of one person or corporation au vest it in some other person or corporation, our position is thi the Stale, in the present instance, hus not done so ; thu by no ciear express manifestation of her sovereign will, hu she given to the Columbia and Augusta Railroad Cou pany the right to say to tho South Carolina Railroad Compan that which was vested in you by prior legislation is noi divested, and all former grants are repealed. It must be evident to your Honors that when a power s great is claimed by a oorporatioD, the delegation ol' that powe Oy tho State ought not to rest on inference or implicatioi Tho parties must lay their hand upon the hue and chapter whie. confers the authority^ Has that been done thus far '( Previous to tho passage of the Act of 1868, the charter c ovory corporation provided the mode and means by wbich land and the right of way were to be condemned. But each charte was a law for itself and contained its own conditions aud rege lati?os ; the consequence, therefore, was in many instances ai inconsistency. The object of thc Act of 18?8 was ovideutly t substitute for all these conflicting provisions a uniform au< genera* rulo of praotice which should obtain throughout th State, and bo applicable to all of its corporations. Tho vor preamble indioates its purpose, namely: ''An Act to declare th manner by which tho Janus or tho right ol' way over the lund of persons or corporations may bo takon for the constructioi ano uses of railways and other works of interual improvement.1 It is unnecessary to cito authorities to show your Honors th effect of a preamble upon the body of an Aot in case ol doubu'u interpretation, anti here is plainly set forth tho single objeu ?ought to be aooomplishcd. The Act itsolf simply regulates tb< praotice in carrying out this intent; and there is not a seotioi in it whioh contains a grant to any corporation past, present o, nature. It is only when wo come to tho eighth section that th? main object is for a moment abandoned, aud a new olemcn sought to be incorporated. lt ie hore alone that the argument of the other side can rest If' they oannot show a clear right to divest us of our property and vest it in themselves by virtue of this sootion, they cannu do eo at all, and thc last vestige of legal authority will bo swop awo^f. Now, what is tho language used't " Tnat no laud? oi right, of way which have heretoiore, or may hereafter be pro cured for the construction or use of any highway, shall bc oon ?idorod exempt from liability to condemnation, but tue right o way otpor said land, and across or along such right of way, tua) be oonidemned for the construction of any other highway." That is tho sum and substance of tho Act. No land? ur righi of way shall bo "exempt from liability," but the same ''may tx CGndm\ti\*L" Practically it ia nothing but the atiirmation of i general legal principle. But when and how does it apply! When thfc State, who is the arbiter, shall give to any part?cula! company that right, subject to suoh limitations, as in her judg? ment, mav be necessary to protect other corporations, bp tc the date ">?f the Act of 1868, I apprehend that the Court o. Errors o? tjiis State would have held that rights granted exclu sively and in express terms to any corporation, could not \x divested by ?ny tribunal without impairing the obligation of thc contract. The Aot of 1868 declares that these rights of way shall noi be " exempt" from condemnation ; that they " may be con denned," These parties, however, seem to think that the mere assertion that rights of way shall not be exempt from condemnation, en? titles them to the most extraordinary privileges, and they have tortured the language into a grant of power which permita I them to divest our rights and vest them in themselves. They attempt to make out that which, keeping strictly, wiihpa,the established rules of.construction U?.utterer beyond the limits ?if human ingenuity.. Why, .may it,?lease.y0?\E. ?9iiprs^.-there is something^monstrous .in.the proposition that a mere^general leniaL'is to. be construed into a genera^ gran); pf power on/the largest and most comprehensive sense- That. the.''l?tate,!?who is the guardian of the public weal, who. has^f\in^rivS/Hf>'UU sanctions and guarantees, vested certain rights,' is-pp-.^ mero affirmation that these rights, shall not be. exeoipt from^c^dorh nation, to pass inte the hands of a single corporation orjjp?i vidual that which is already inherent in apbj,he?. ifo tribunal, has set in judgment a nd declared?bat'-ithe,-neeossi ty exista, but in the place of this it is insisted! that there^-sjiaU be substituted the individual judgmenV-of..a/?or^witiori' ipoved by se?rinterest,. and,, (looking solely.^ io. s?.lfr^ggrandi^?jnent. I repeat, is. not such.p. proposition in?osj^o?nw .^ej^^four Honora have to establish Abat proposition' bojprailijbp jrights of these defendants to take oui- property oaa,.be .maintained, if their view be, correct, jthore.,is no check, no i^ii^em^ts,rio ?mita?o? to be observed, j It .ia-,-pot provided, that evep:? tho necessity shouldbe. esUblisbod; and yet, a^rding^^ jthe doctruW laid down in blake's cuse, the necessity must pe probed. In the inj unction'case before- another branch pf this..tribunal, one of your Honors, held '.'.that persons and corppr*^pnft;^ ized to pat in exercise the extraordinary po wera.pf. t he ; omino nt domain, should enter, upon tba. lands of others, oitber witp their consent or under the sanction o? a'judiciaj act.dc^mining.tha rightful character and proper hun tarions .of stieb a?tfaoridtf . If tho proposition of the other side, bei.tru^ neiUier^iofTthese are necessary. Blake's case and your Honors' opinion a^awept away, and the party acqjaires..the right ,Simply by paying .tho v$$* " ? , . a I ...'Wi.';: pi ow, may lt please the Conr^ can ,it be- maintained.,jtpat, ander this section of the Act of 1868, the charier of the Coom? bia and A u gus ta .Railroad Company, .which .merely prescribes the terminus, a, quo, and terminus aa quern, contains, ap^pri ty to divest tao, posted; rights' of another at, -i^.^fii^i^fff- the corporation;.that a corporation chartered from;here. to.aripthor point can deflect from.; its course,.fox th?','?arpo^e| infr^gging upon the rights of: others, and .j^b?t ;^han./it?.aaaJ|?.vi^^pro pria te, the only question will be. the quantum of .compensation ? ?et that actually and necessarily follows, from the Cons traction pf the eighth 'se?Uoo, urged.by these d?ferlants.>?? More than that, so far as my observation of charters hjisex? tended, and I. ha ve consulted .many. on^^ti^i-pQint^^ .pearly every one there are prescribed li mitatiops upon tbejjpking ot lands, especially along high ways. The very chai-ter of tbe^,?kUum bia and Augusta Railroad Company provides that said^ppmpany shall not obstruct the public road without constructing .another equally good. Provisions of a similar character -aro.' in tho charter ol' every corporation with which 1 am aeouajpted,., -JNo such limitations, or checks, however, are contained in the ?Act of 1868, which is the sole fountain, of. authority for our .opponents, and they accordingly ask us to suppose that the' State has em? bodied the idea in every charter,? that each corporation-the interested party-may itself judge where it:w^;run itfl :-^ne. and from whom it. will take what it needs;, that the-rights fifi ail are ignored and the benetit of the corporation alone considered. We contend that no such construction oap be legitimately placed upon that section eight; that such, power does not.exist inthe Aot, and cannot be deduced from its language, j., :]- ...... :>i ? But we go a step further. .There is nothing more clear,than that grants to a corporation ara.to be construed strictly ; that wherever it is a question of doubt, strict construction ?is against the corporation, and liberal construction in favor pf the,public, in a leading case in this country, argued with great ability, and thc decision of which has been received with great respect, I refer to the Pennsylvania Railroad Company us* Canal Commis? sioners, 21 Penn., 22, the Chief Justice said: ".When potato menus to clothe a corporate body with a pprfion.pf',horvSpyor eiguty, and to disarm herself to that extent of. Ohe-power tba', belongs to her, it is so easy to say. BO, that we will .never believe it .to .be meant when it,is ..not said, ln^th^eopstruotion of a charter, to be in 'doufo.'.is "to. bfe reso'ive^ai?a evisry.re^ipti'on, which"springs from doubt, is, against the^gorpora^ipn.. Jtf "the usefulness ox the company would be increased by extending privileges, let tho Legislature see to it ; but remember that nothing but plain.English words will do it.'' \ ". Just there, may it please your Honors, we take .ppr stand. We say that when this company claims so high^, apd.iwvereign power as to take lauds vested in us, they musj/showfthat delegation of authority in. clear and unambiguous language, lt must not be loft to doubt, because, where doubt exists the power does not. . l i-;^ J Ia the Binghampion Bridge case, pl-,..75, 3d ' Wsllap^/J?ie opinion declares that "in grants by the public noising pasees "by implication,'.'if the charter is sUej&t abpt?t\? pop^?,it "does not exist, .""''". ; "s, There is in this Act pf 1868 no grant pf'jower,, p? U.inlta marked, no plain express terms; nothing but negativo..woros saying that property shall not be exempt and. may.^.j?on demned. The lair and reasonable interpretation is that ,tba time and manner in which it is to be condemned is reserved.to the State to be incorporated in such cases as may boroiU?ter.arise, if this were not so, the Act would operate by. implication, as a repeal of every charter hereto fore, granted, and. a div^^thre of the existing rights established under th'ose{ojaartar^t,;?^.nd the law is clear thai such repeal by implication cannot obtain. There is a very full and precise statement of the law and the authorities upou this point in Dwiu'is op Statutes, p. 533, arid I need do no more thau. simply refer to it. In the case pi, Ruth? erford ve. the Greene Heirs, {$ Wheaton, 2Q3,) .the'.(^luef"Juaiice -ays : " Whatever the legislative power, may be, its| acts-,ought " never to be so oonstrueU as to subvert the-rights pf^rpi'sjrty, ? unless its intention so to do shall be ax?|?^||B^iA^^^^a? .'as to admit, of no doubt and to show. a clear design .to o??'ect the objeot. 3&? general terms' inmded f^r. .prop-. ?* orty to which they may bo fairly apphpabie, an^.'."o$t..par . ticularly applied by the Legislature, nb "silent imppecil and " constructive repeals ought ever to beso understoocLaa to divest "a vested right. And in Boston and Lowell Railroad Company vs. Salem'?nd Lowell Railroad Company, 2 Gray, 1, Shaw, C. J., says.: "We . cannot perceive " " any act of the government appropriating .any of tho rights, franchises or privileges of the,plaiptiu .'under tho right of eminont domain. ' The charaeterisyes of '" such an appropriation are well known and understood. . It .. must appear that the government intend to exercise this high ? sovereign right by clear and express terms or by necessary .. implication, leaving no doubt or uncertainty respecting, such .* intent," ,. :. There was an elaborate examination by the Chief J?sti?? of the powers of a Legislature and the rights of a corporation, and his decision was, uot that tho Legislature could not gmht^but that it had not granted ; and it could only beby clear expressions of che l?gislative intent that tho power claimed could be con? sidered as granted to, and rightaullv exercised by, the corpo? ration. The same Judge, in the case of the Boston Water Power Company vs. Boston and Worcester Railroad Corporation, 23 Pickering, 36?, (Amerioan Railway oases, 328,) after disoussing ibo right of the Legislature, under the eminent domain, comes LO the question whether the Legislature have grauted certain power. " It is, therefore," ho says, " a question bearing upon .the presumed intent of tho Legislature. It may be fairly "argued that although there is'no limitation of the power bf the corporation in terms, still, ii' the Legislature hadalready ap " propriated a portion of the land lying between the terhiini,to '.another important public use, and especially if the constrpo "tion contended for would wholly, or in a great degree, defeat " such other important public use, it is not to be presa med that " the Legislature r eont thus to extend the power, and so a "limitation might be engrafted by necessary and reasonable "implication upon tho generality of1 the Aot, * * * * * "Supposing both to exist, both cannot stand together and one "must supersede the other. And this shall not be presumed "to bo thc intent of the Legislature, unlesB it appears by ?x " press words or necessary implication. In this respect also , " this case aiders from the ea*e in Gill and Johnson. . ;; ?. There the canal and the raifroad must necessarily occupy " the same identical hue, each for a public use ; both could not "stund together; and, tuerelore, it was decided that a lrapcJ iso "already granted should not be considered as supe^ed.ed .- id .. taken away by a subsequent legislative act, granting poi- JT .' in general terms. ?' So, if a power were given in terms to lay cmt a turnpike OT